Article I, Section 8, Clause 11 of the
U.S. Constitution
The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
, sometimes referred to as the War Powers Clause, vests in the
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
the power to declare
war
War is an intense armed conflict between states, governments, societies, or paramilitary groups such as mercenaries, insurgents, and militias. It is generally characterized by extreme violence, destruction, and mortality, using regular o ...
, in the following wording:
:''
he Congress shall have Power ...To declare War, grant
Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...''
A number of wars have been declared under the U.S. Constitution, although there is some controversy as to the exact number; the Constitution does not specify the form of such a declaration.
History and usage
Five wars
have been declared by Congress under their constitutional power to do so: the
War of 1812
The War of 1812 (18 June 1812 – 17 February 1815) was fought by the United States of America and its indigenous allies against the United Kingdom and its allies in British North America, with limited participation by Spain in Florida. It bega ...
, the
Mexican–American War
The Mexican–American War, also known in the United States as the Mexican War and in Mexico as the (''United States intervention in Mexico''), was an armed conflict between the United States and Mexico from 1846 to 1848. It followed the 1 ...
, the
Spanish–American War
, partof = the Philippine Revolution, the decolonization of the Americas, and the Cuban War of Independence
, image = Collage infobox for Spanish-American War.jpg
, image_size = 300px
, caption = (clock ...
,
World WarI, and
World WarII.
In a message to Congress on May 11, 1846,
President
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
James K. Polk
James Knox Polk (November 2, 1795 – June 15, 1849) was the 11th president of the United States, serving from 1845 to 1849. He previously was the 13th speaker of the House of Representatives (1835–1839) and ninth governor of Tennessee (183 ...
announced that the
Republic of Texas
The Republic of Texas ( es, República de Tejas) was a sovereign state in North America that existed from March 2, 1836, to February 19, 1846, that bordered Mexico, the Republic of the Rio Grande in 1840 (another breakaway republic from Mex ...
was about to become a state. After Mexico threatened to invade Texas, Polk amassed federal troops around Corpus Christi. When Texas became a state, federal troops moved into an area in which the new international boundary was disputed. Mexican troops moved into the same area, and both forces clashed. The President then said that "after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced and that the two nations are now at war." Some in Congress wondered if that was actually so, including
Abraham Lincoln
Abraham Lincoln ( ; February 12, 1809 – April 15, 1865) was an American lawyer, politician, and statesman who served as the 16th president of the United States from 1861 until his assassination in 1865. Lincoln led the nation thro ...
, who wrote in a letter to his law partner:
Let me first state what I understand to be your position. It is, that if it shall become necessary, to repel invasion, the President may, without violation of the Constitution, cross the line and invade the territory of another country; and that whether such necessity exists in any given case, the President is to be the sole judge.... But allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose—and allow him to make war at pleasure.... If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us" but he will say to you "be silent; I see it, if you don't."
The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.
US Representative Lincoln moved for a resolution issuing the President interrogatories (questions) so that Congress could determine for itself the exact "spot" of the conflict and whether the Congress believed it to be in the United States. However, Congress, by roll-call vote, declared war.
If it was true that the war was ongoing because the President had to repel a sudden attack, that had been contemplated by the framers in Philadelphia in August 1787, when the wording of the proposed Constitution was changed from "make war" to "declare war." American presidents have often not sought formal declarations of war but instead maintained that they have constitutional authority (
Article II, Section 2) as commander-in chief-to use the military for "
police action
In military/security studies and international relations, police action is a military action undertaken without a formal declaration of war. Today the term counter-insurgency is more used.
Since World War II, formal declarations of war have bee ...
s."
The
Korean War
, date = {{Ubl, 25 June 1950 – 27 July 1953 (''de facto'')({{Age in years, months, weeks and days, month1=6, day1=25, year1=1950, month2=7, day2=27, year2=1953), 25 June 1950 – present (''de jure'')({{Age in years, months, weeks a ...
was the first modern example of the U.S. being taken to war without a formal declaration,
as has been repeated in every armed conflict since. Beginning with the
Vietnam War
The Vietnam War (also known by #Names, other names) was a conflict in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. It was the second of the Indochina Wars and was officially fought between North Vie ...
, however, Congress has given other various forms of authorization to do so. Some debate continues as to their appropriateness as well as the tendency of the executive branch to engage in the origination of such a push, its marketing, and even propagandizing or related activities to generate such support.
In light of the speculation concerning the
Gulf of Tonkin Incident and the possible abuse of the authorization that followed, Congress in 1973 passed the
War Powers Resolution
The War Powers Resolution (also known as the War Powers Resolution of 1973 or the War Powers Act) () is a federal law intended to check the U.S. president's power to commit the United States to a ...
, which requires the President to obtain either a declaration of war or a resolution authorizing the use of force from Congress within 60 days of initiating hostilities with a full disclosure of facts in the process. Its constitutionality has never been settled, and some Presidents have criticized it as an unconstitutional encroachment upon the President. In 2007,
University of Virginia
The University of Virginia (UVA) is a Public university#United States, public research university in Charlottesville, Virginia. Founded in 1819 by Thomas Jefferson, the university is ranked among the top academic institutions in the United S ...
Professor
Larry J. Sabato
Larry Joseph Sabato (; born August 7, 1952) is an American political scientist and political analyst. He is the Robert Kent Gooch Professor of Politics at the University of Virginia, where he is also the founder and director of the Center for P ...
proposed, in his book ''
A More Perfect Constitution
''A More Perfect Constitution'' is a book published by American political scientist at the University of Virginia, Larry J. Sabato, in which he proposes a constitutional convention to substantially overhaul the United States Constitution. He poi ...
'', a
constitutional amendment that would settle the issue by spelling out the exact powers of each branch in the Constitution itself. One counterargument is that the Constitution is a "
living document
A living document, also known as an evergreen document or dynamic document, is a document that is continually edited and updated. An example of a living document is an article in Wikipedia, an online encyclopedia that permits anyone to freely edi ...
" that has survived for over 200 years because not everything is "spelled out." In the area of the War Powers Clause, the flexibility provided by the requirement for a congressional statute for a declaration of war and constitutional interpretation could be sufficient. The President could defend the country himself but not use the military offensively without Congress. That would not require a constitutional amendment or a statute like the War Powers Resolution since it has been used since 1787.
Some legal scholars maintain that offensive, non-police military actions, while a
quorum
A quorum is the minimum number of members of a deliberative assembly (a body that uses parliamentary procedure, such as a legislature) necessary to conduct the business of that group. According to ''Robert's Rules of Order Newly Revised'', the ...
can still be convened (see
Continuity of Government
Continuity of government (COG) is the principle of establishing defined procedures that allow a government to continue its essential operations in case of a catastrophic event such as nuclear war.
COG was developed by the British government bef ...
), taken without a formal congressional declaration of war is unconstitutional since no amendment has changed the original intent to make the War Powers Resolution legally binding. However, the
US Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...
has never ruled directly on the matter and no counterresolutions has come to a vote. In the absence of a determination by the Supreme Court, the principle of
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
produces a stalemate on the issue.
Constitutional convention debate
Pierce Butler Pierce or Piers Butler may refer to:
*Piers Butler, 8th Earl of Ormond (c. 1467 – 26 August 1539), Anglo-Irish nobleman in the Peerage of Ireland
*Piers Butler, 3rd Viscount Galmoye (1652–1740), Anglo-Irish nobleman in the Peerage of Ireland
* P ...
of South Carolina was the only delegate to the
Philadelphia Convention
The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787. Although the convention was intended to revise the league of states and first system of government under the Articles of Confederation, the intention fr ...
who suggested giving the executive the power to take offensive military action. He suggested that even if the President should be able to do so, he, in practice, would have the character not to do so without mass support.
Elbridge Gerry, a delegate from Massachusetts, summed up the majority viewpoint saying he "never expected to hear in a republic a motion to empower the Executive alone to declare war."
George Mason
George Mason (October 7, 1792) was an American planter, politician, Founding Father, and delegate to the U.S. Constitutional Convention of 1787, one of the three delegates present who refused to sign the Constitution. His writings, including s ...
,
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
, and other contemporaries voiced similar sentiments.
War Powers Reform
Congress has at various points sought to reassert its constitutional responsibility over war powers decisions, including since its enactment of the War Powers Resolution in 1973. In 2021, the House Rules Committee and the House Foreign Affairs Committee held hearings on war powers reform, at which testified several war powers scholars and former government officials.
House Rules Committee, Article I: Reforming the War Powers Resolution for the 21st Century
https://foreignaffairs.house.gov/2021/3/reclaiming-congressional-war-powers
Supreme Court cases
*''Woods v. Cloyd W. Miller Co.
''Woods v. Cloyd W. Miller Co.'', 333 U.S. 138 (1948), was a case in which the Supreme Court of the United States held that the war powers of the United States Congress extend beyond the end of hostilities allowing them to remedy problems caused b ...
'' (1948)
*'' Youngstown Sheet & Tube Co. v. Sawyer'' (1952)
*Torres v. Texas Department of Public Safety
''Torres v. Texas Department of Public Safety'', 597 U.S. 580 (2022), was a United States Supreme Court case dealing with the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA) and state sovereign immunity. In a 5–4 d ...
(2021)
Other cases
*''Dellums v. Bush
''Dellums v. Bush'', 752 F. Supp. 1141 (D.D.C. 1990), was a D.C. Federal District Court decision by United States District Judge Harold H. Greene, denying the plaintiffs, members of Congress, a preliminary injunction against President George H.W ...
'' (D.C. Dist. 1990)
*'' Campbell v. Clinton'' (D.C. Dist. 2000)
See also
* Commander-in-Chief
*''The Imperial Presidency
''The Imperial Presidency'' is a nonfiction book by historian Arthur M. Schlesinger Jr. It was published in 1973 by Houghton Mifflin and reissued in 2004. The book details the history of the presidency of the United States from its conception ...
''
*Unitary executive theory
The unitary executive theory is a theory of United States constitutional law which holds that the President of the United States possesses the power to control the entire federal executive branch. The doctrine is rooted in Article Two of the Un ...
* War Powers Resolution (War Powers Act of 1973)
References
Further reading
*Fisher, Louis (2004) ''Presidential War Power, 2d Rev. Edition''. University Press of Kansas
*Hendrickson, Ryan C. ''The Clinton Wars: Congress, the Constitution and War Powers.'' Vanderbilt University Press, 2002
*Lawson, Gary, "Delegation and Original Meaning" (October 2, 2001). ''Virginia Law Review'', Vol. 88, April 2002
* Madison, James. Federalist No. 45, ''The Federalist Papers
''The Federalist Papers'' is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States. The co ...
''
* Woods, Thomas
Presidential War Powers
''LewRockwell.com
Llewellyn Harrison Rockwell Jr. (born July 1, 1944) is an American author, editor, and political consultant. A libertarian and a self-professed anarcho-capitalist, he founded and is the chairman of the Mises Institute, a non-profit dedicated to ...
''
* Yoo, John C., "War and the Constitutional Text" . ''University of Chicago Law Review'', Vol. 69, No. 4, Fall 2002
*2 Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed. 1937).
{{US Constitution
Clauses of the United States Constitution